are versed in that business; but here he must have the direction of the attorney, and who is that but Goodenough, a man we have all heard enough of; and then Burleigh and Keeling must be employed, and by whose advice, but by Goodenough and Nelthorp's? And all these rascals, who now stand attainted of treason, must be fetched in to consult about a fit man to make an arrest: and there they pitch upon this man Keeling for one, who was one of the principal conspirators in that damnable, hellish plot against the king's life, and that of his royal brother; but, by the blessing and Providence of Almighty God, was made use of as a great instrument of preserving those precious lives, and with them our government and religion, and all that is dear to us, which by that conspiracy was undermined, and I wish we had not reason to say, and think, the conspiracy still to be going on. But I hope in God the government, as established both in church and state, will always be able to prevail, maugre all designs, and those that are engaged in them, for its destruction.

Now Keeling tells you he scrupled the employment: No, said be, I desired not to have my name put in, because I was never concerned in any such thing before, and my business was of another sort. But then Mr. Goodenough (and Mr. Brome the coroner no doubt had a hand in it, though now he has a very treacherous memory, and has forgot all that was done) comes and tells him, you must concern yourself, and, do this thing; for you have a trade with the party, and it will be ill taken if you do not do it. And being asked, whom he meant by the party? He tells you, the discontented party: and he explains their discontent to be such, that they would have killed the king and the duke. Now how far he was engaged with that party is pretty well known, and therefore if he boggled at such a thing as this, which that party it seem swas engaged in, they would suspect him, and so, for the party's sake, he was drawn in.

But then, when this thing is done, pray, Gentlemen, do but consider what the consequences might have been, and which, perhaps, (nay upon what has happened to be discovered since, doubtless,) they did design it. But, God be thanked, those consequences were prevented, and they themselves have cause to be thankful to God Almighty for it. For here all the ma⚫gistrates of the city, that had any care for the good government of it, were to be taken up, and then here was a body without a head, a town full of faction without any government, and if the heady rabble had been once up, without those that had authority to restrain them, where then had been your liberties or properties, gentlemen, or any man's; nay, theirs that were engaged in this design, if they had any? For those were things much talked of by them. In what danger had you, and all you had, for life, estate, relations, and every thing been? But it pleased God in his infinite mercy to shower down upon us, and upon

this city, and the government, in a mighty preservation, putting it into the hearts of some in power, to bring the city-militia some of them together, and prevent this mischief, or else, God knows, this whole city might have been by this time once more in ashes, and most of the king's subjects wallowing in their own and one another's blood: and their party too would have felt the sad effects of it, no doubt, as well as others. So that the consequence of it was to destroy the government, and that appears by the party's being engaged in it; it could not be to gain a right, to make this hubbub and ado to arrest the magistrates of the city, and then take advantage for some other wicked purpose.

Another point of circumstance that is considerable in this case, is the particular persons, that were to be sued. The mandamus, that was directed to the lord mayor and aldermen ; and there is a return made, not by this, or that, or the other man, but in the name of them all, the whole court. How comes it then to pass. that my lord mayor, sir Henry Tulse, and those other gentlemen, must be sued and arrested? But I warrant you Mr. Cornish, or his party, were not to be meddled with: No, he had so much zeal for justice, and to do the defendant right, that if he should have been called upon to appear, he would not have stood out an arrest; so just a man he is, and such a lover of right without all doubt: but he was in no danger, I dare say; they loved one another too well to sue one another. That, I say, gentlemen, is another circumstance, that carrieth malice in it. For I must tell you, these things cannot be smothered, they are as apparent as the light: and though it falls to my turn in this cause, to remind you of them; yet they are as well known to you all, as the passages in your own families.

No, gentlemen, there was not a pursuit of right in the case; it was a designed piece of villany on purpose to affront the government; nay, to destroy it, and set us all together by the cars. And if he were ten thousand times Mr. Papillon, I would, and must tell him so; and if it were not for some such devilish end and purpose, he would never have been so greedy of an office he had before declined and fined for; and which he was only called to by a turbulent, seditious, factious party, that had further aims in it. Otherwise, I know Mr. Papillon's humour so well, that I am confident, he would much rather have been contented to sit in his counting-house, than in Guildhall in a scarlet gown. Alack-a-day! I know Mr. Papillon knows how to spend his time to better advantage to himself."

Ay, but say the counsel for the defendant, We did go on very tenderly, and civilly, and respectfully; for there met at Mr. Cornish's house-Who, I pray? Mr. Papillon, and Mr. Dubois, and Goodenough, the prime attorney in this cause: and there, forsooth, they tell Goodenough, Be sure you do nothing but what is exactly according to law; and be sure

you carry it very civilly and respectfully to my lord mayor, good Mr. Goodenough. Alack-a-day! how wonderful pious and considerate these people are! If Mr. Cornish had gone to my lord mayor, as it was his duty to do, being then an alderman (we know it full well) and said to my lord mayor, there were such persons at my house talking of such a matter, and I come to advertise you of it, and desire you would consider of it, he had shewn his piety and zeal, and love for justice, much more in that, than in admitting such cabals in his house. But we know very well, as well as if we were in them, that they must go hand in hand in all these seditious and factious busi

nesses.

As in case I have a mind to do any particular man an injury in his reputation and business; the business must not be done downright, by going to every body, and saying, Such an one is poor, or a beggar, and do not trust him; but I must cunningly and slily insinuate it, I am sorry for such a man; I believe he is an honest man, but however he oweth money; and under this sort of snivelling, canting, whining, sly rate, do a man any injury whatsoever: and yet, forsooth, he shall have no advantage against me for it: I shall strike a dart into the very heart of that man's credit, and yet he have no remedy.

So, if I have a mind to talk against the government, I will not do it aloud, and speak what I mean openly; but I will whine, and snivel, and cant, and make people believe I have dreadful apprehensions of what is designing, and yet not bring myself in any danger; for I will keep within bounds all the while, though I do more mischief than if I dealt fairly and above-board. Alack-a-day!' (as Mr. Pilkington said) I am for the preservation of the liberty and properties of the subject, and I am for the law; but I find the city is

It is plain, gentlemen, what the design was from the beginning to the end; nothing but to cause a tumult and confusion in the city, in order to put that damned hellish conspiracy, for the destruction of the king and his brother, and every man that was honest and loyal, in execution. This is certainly known to you all; and that there should be such a parcel of people untowardly linked together in this matter, not one man of which that they can pretend to be in any wise a well-wisher to the govern-strangely run down in their rights and priment, or to any that have any share in it: no, they are all persons that are obnoxious to the government, that had any hand in it; but none of them church of England-men, or friends to her established worship; notorious dissenters, or profligate Atheistical villains that herd together.

This, gentlemen, is plain English, and necessary to be used upon all these occasions: So that it remains now upon your consciences, whether upon all these circumstances that have been mentioned, you think the bare obtaining of a right in a legal course, or some worse thing was designed.

We all know Mr. Papillon to be a wealthy man, an able merchant; one that had rather have minded his affairs abroad, or at the Exchange, than the expensive, troublesome office of sheriff of London, but that something was to be done to wreak a damned malice and revenge upon the government. And sure, he must think, as his party it seems did, that they would not be sufficient to subvert the government, unless he could get into that office,

This I tell him openly; and let him or his party make their remarks upon it as they please. But you are to judge whether these things be a sufficient evidence of malice to support the plaintiff's action.

There was questionless a devilish malice fixed in his heart and mind, and he wanted an opportunity to effect it; and he thought it for his own security to be best to take this course, and nothing else was in it. For abundance of people have a mind to do mischief, but want opportunity and safe ways to do it in: and, Oh! they rejoice, if they hit upon a project, that shall carry a specious pretence and colour of law; for then they think they are safe enough.

VOL. X.

'vileges, and there are very arbitrary pro'ceedings. And I am a citizen, and have taken my oath to preserve the privileges of the city; and I will rather submit to the inconvenience of a troublesome office, than let all run thus:' and immediately he sets himself cock-a-hoop, as if there were no one that took care of the city besides himself, and he were such a patriot, that there were none like him: and he, and Mr. Bethel, and Mr. Cornish, forsooth, are the only men of the times; the only good men; men that are for the liberties and properties of the subject, and the rights of the city: whereas these are the only men that have made an invasion upon them, and done what they could to destroy them; and God knows we might all of us have enjoyed very quietly every man his own, if these contesting rioters, and busy factious fellows, had not come among us. Every honest man, I tell you, knows this to be true.

Gentlemen, As to the business concerning the Damages, that, if you find for the plaintiff, is left to your judgments to consider of, and give what you shall think fit upon such an occasion. It is very true, it is not so easy a matter to ascertain particular damages in such a case; nor is it in an ordinary way so easy to prove, that because sir William Pritchard was in prison but five or six hours there, he could suffer so much damage as comes to ten thou sand pounds. As in the case of a person of great quality and honour, it is not easy to prove his particular damage: nor in the case of any of you, that are wealthy, able, sufficient citizens, to say you are a bankrupt, when we all know it is impossible to be true; and so no particular damage doth ensue that can be proved; yet, however, if the thing for which the action is brought were designed with malice, though 2 B

the ill design be not effected, that is no thanks to the party, nor is to weigh with you, but the malicious design must govern you.

Now, here I have taken notice to you, that the malice of this design here was not against sir William Pritchard as such a particular man, but against my lord mayor, that this clan that met at Russel's was an overflowing of that gall or malice that was in his heart.

If Mr. Papillon had brought an action upon a bond only, certainly it had been nothing but what he might very well do; or if he had pretended to sue for a bad debt, that if he had staid would have been lost, it had been something: but you see what it was, and it is as apparent why it was, in that Mr. Goodenough said to Keeling, threatening him with the displeasure of the party if he did not do it; and Mr. Goodenough and Mr. Brome were such strangers to one another, that he must threaten Brome to complain of him, if he did not execute his writs presently. Do they think all mankind are so dull or blind, as not to see through such thin artificial stuff as this?

Gentlemen, this is the matter: the government is a thing that is infinitely concerned in the case, that makes it so popular a cause: the government of the city, the honour of your chief magistrate, and indeed the honour of the king, whose substitute he was, is concerned, and that puts a weight upon your inquiry into the damages of this case. You are to consider you give damages to the plaintiff, not as sir William Pritchard, but as lord mayor: and your severity in this case will deter all people from entering into clans and cabals to make disturbances, and affront the governinent.

It is a thousand times better to keep within their own bounds, mind their callings and employments, and concern themselves with

their own affairs, and leave the administration of the public to them to whom it belongs, and is intrusted with. And according as we say in the law maxim, so say I to Mr. Papillon and all the party, Ad Concilium ne accedas, antequam voceris.' And do not be scared with imaginary dangers, and groundless jealousies, iuto tumultuous and disorderly courses. You had much better keep in your countinghouse, I tell you again, and mind your merchandize. Nay, and I do not doubt but you would much rather have done so, if there had not been some further fetch in it. It was not, I dare say, out of a frank, generous humour to oblige the city, that Mr. Papillon would have spent his time and money in the office of sheriff; no, I know he had better ways to employ both.

It was not the generous mind of Mr. Bethel, that called him on to be sheriff of London, to entitle him to spend his money; but on purpose to be one of the first, that should turn all things upside down in the city, and disturb the government and they that succeeded him, carried on the project; and they that would have been in, but could not, had a mind, no doubt, to follow so worshipful an example as he laid before them.

Then the Jury withdrew to consider of their Verdict, and after half an hour's stay, returned, and found for the plaintiff, and assessed damages to Ten Thousand Pounds, and costs to Four Marks.

L. C. J. Gentlemen, you seem to be persons that have some sense upon you, and consideration for the government, and I think have given a good verdict, and are to be greatly commended for it.

$12. The GREAT CASE OF MONOPOLIES, between the East-India Company, Plaintiffs, and THOMAS SANDYS, Defendant: Whether their Patent for Trading to the East-Indies, exclusive of all others, is good? 35 CAR. II.-1 JAC. II. A. D. 1683-1685. THE East-India Company having a Patent the Letters Patent, which are set forth, as we granted them of the sole Trade to the East- have declared and pleaded. Indies exclusive of all others, commenced a suit against Mr. Sandys for trading thither without Licence; in which case the following Arguments were made, viz.

To this plea the Plaintiffs have demurred. My lord, I do conceive the general question in this case will be this, Whether or no an action lies by the Company upon this charter; for that the defendant not being a member of the Company MR. HOLT'S ARGUMENT. has traded into the East-Indies without licence (AFTERWARDS LORD CHIEF JUSTICE.) of the Company? My lord, I think there may be two questions made in this case, first, wheThe Governor and Company of Merchants of ther or no this grant of the king to the ComLondon, trading to the East-Indies, v. T.pany to have the sole trade to the Indies, exSandys, T. Mich. 35 Car. 2. Rs. Rot. 126. clusive of all others his subjects, whether that The Defendant comes and prays Oyer of be a good grant? Secondly, supposing it to be ralty) in Magdalen college, Cambridge. These Arguments are of great concern to the public in general, and to every individual man in this

"The six following Arguments in this Great Case, were copied from the MES. of Samuel Pepys, esq. (Secretary to the Admi

subjects of England have right to such a foreign trade, that they can, ad libitum, trade without any controul; and I conceive they have not.

First, my lord, I conceive that the liberty and right of a foreign trade, depends upou agreement and contract with foreign princes, in whose country the trade is; and if so be it do depend upon agreement and amity with the prince; then have not the subjects of England such an uncontrolable right of trading, because it depends upon the accidents of peace and war; which, if there were such a right, it could not. 30 ch. Magna Charta, Omnes Mercatores, nisi publice antea prohibiti fue'runt, habeant salvum et securum conductum 'exire de Anglia et venire in Angliam, et morari et ire per Angliam præterquam in tem

to have, by the constitution of the government itself, of the christian religion, which I conceive is the main end of government. The profession and preservation of christianity is of so high a nature, that of itself it supersedes all law: if any law he made against any point of the christian religion, that law is ipso facto void. Why? Because it is made against the prime and original end of government. If the king conquer a christian country, their law continues till it be altered by the king; but if he conquers a pagan country, the law ceases spso facto to be law; for the law of infidels is contrary and repugnant to the christian religion. Why then, if the christian religion have the prevalence in christian countries, there must be some means provided by the law, whereby the king may have a power to preserve it: and there is nothing more dan-pore guerra.' Then he goes on further, if gerous to the right religion, than for the professors of that religion to have commerce with pagans; we read how the children of Israel were perverted from the true religion, by converse with the nations round about them, in the Book of Judges.

And Grotius De Bello et Pace, 1. 2. c. 15 parag. 11. says, Cavendum est enim ne nimia commixturatio contagium adferat in'firmis, quamobrem utile erit, sedes distingui 'sicut Israelitæ seorsim ab Egyptiis habitarunt.' The government is to take care that there is not an infection, by correspondence with infidels; my lord, it is not to be doubted but that the king is to have a care of the christian religion. In old times of popery, Bracton, lib. 2. ch. 24. the king of Lugland, says he, is Dei minister et vicarius.' Et 5. ch. Bracton, Jus publicum est quod ad statum.' This is looked upon to be part of the Jus publicum, the care of religion and sacred things, and the propagation thereof; why then, my lord, if this be true, then it is lawful for the king to take care and use his royal authority, to prevent all his subjects from being perverted. My lord, I think it is plain by the writ of Ne exeat Regnum, that says the king may prohibit any person from going beyond sea. Why ?. For the defence of the realm; that is a sufficient reason, it is not in the power of the party to litigate it with the king, but he must subinit. Now always religion is first to be regarded; secondly, the defence of the kingdom; and thirdly, the trade thereof. Now, my lord, the subjects of a Christian prince going to trade with Infidels, being in their company, that may be dangerous to the state and religion; so that it must necessarily be in the power of the king to controul it. Hob. 217. Courteen's case, it was adjudged that an information did lie at the cominon law, before any statute, against any persons that should transport coin, because it is against the policy and state of government that money should be transported; now, if it be against the policy of state to trade with infidels, by the same reason that ought to be restrained. In the next place, I will consider foreign trade, and whether the

6

there happen to be war with a foreign prince, and the kingdom of England, and the merchants of that country be found in England; this shews that war is an interruption of the commerce. 12 H. 7, ch. 6, my lord, that statute recites, that the merchants-adventurers inhabiting within the city of London, and divers parts of England, had free passage, &c. into divers parts of Spain and other places, that were in league and amity with our kingdom and sovereign; so that it appears that league and amity is the foundation of commerce.

Selden, in his Mare Clausum, says, the rights of trades are founded on the covenants of princes. What is the reason? Lest the manners and morals of the people should be corrupted by the example of foreign nations. My lord, 2 Rolls Abr. 214, mentions the parliament-roll of 1 II. 5, wherein it is said, That the Commons did petition the king that the merchants of England, paying their customs and other duties, might have liberty to export their goods to any place or country, notwithstanding any proclamation to the contrary: and the king says, He will be advised, he would advise with his council. My lord, from that time to this it appears that there was no complaint of the king's proclamation as illegal, that did prohibit their trade; but they only pray that he would make an alteration of the law. But there were several proclamations at that time to restrain the subject from trading with foreigners (therefore they desire he would consent they might trade); but the king in that case did think fit to part with his power, but gives the usual answer in such cases. My lord, in the next place it is necessary for the king to have power to restrain a foreign trade; because a foreign trade, as the case may be, may be very inconvenient and mischievous: for it is well known, that if so be the importation of foreign commodities do exceed the exportation of domestic, that trade is rather a grievance than a benefit; so it is said, 2 Inst. 325, and, my lord, there has been sufficient appearance of this matter of late days.

My lord, the importation of Irish cattle, by the 18th of this king, chap. 2, was declared to